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NY J88826




September 19, 2003

CLA-2-85:RR:NC:1:108 J88826

CATEGORY: CLASSIFICATION

TARIFF NO.: 8525.20.9070

Mr. W. Robb Lane
Ericsson Inc.
6300 Legacy Drive
Plano, TX 75024

RE: The tariff classification of a cellular telephone from France.

Dear Mr. Lane:

In your letter dated September 9, 2003 you requested a tariff classification ruling.

The item in question is denoted as the Sony Ericsson P800 Smartphone.

The device is a cellular telephone that incorporates a digital still image camera with streaming video capability, an MP3 player, multimedia messaging (MMS), Internet browsing, game functions, and a PDA organizer. The device is designed so that the user can make and receive cellular telephone calls on the public cellular telecommunication system and also perform the other functions associated with the additional capabilities.

The device is packaged for retail sale (sample provided) with a Li-Polymer battery, charger, stereo headphones, a flip replacement cover for the smartphone, a memory stick adapter, stylus, carrying case, synchronization base, CD-ROM software packages (2) and printed users guides both in English and Spanish.

It should be noted that you have requested the classification of both the entire set and its individual components. This office will address only the classification of the retail kit. The other items can be requested under separate cover for only five items each.

Explanatory Note X to GRI 3b provides for the purpose of this rule, the term “goods put up in sets for retail sale” shall be taken to mean goods which:

A. Consist of at least two different articles which are, prima facie, classifiable in different headings.

B. Consist of products put up together to meet a particular need or carry out a specific activity; and

C. Are put up in a manner suitable for sale to users without repackaging (e.g. in boxes or cases or on boards).

All the aforementioned articles, that merit equal consideration, are prima facie classifiable in different headings. Together they enable the user to perform radiotelephony/radiotelegraphy. Based upon the submitted sample the retail packaging is in fact the imported condition and the kit will not be repackaged. Therefore it is the opinion of this office that that the Smartphone kit does constitute a set in accordance with Explanatory Note X.

In accordance, in part, with GRI 3b goods put up in sets for retail sale, which cannot be classified by reference to GRI 3a, shall be classified as if they consisted of the material or component which gives them their essential character.

EN VIII to GRI 3b states that the factor, which determines essential character, will vary as between different kinds of goods. It may for example, be determined by the nature of the material or component, its bulk, quantity, weight or value, or by the role of the constituent material in relation to the goods.

It is the opinion of this office that the item which imparts the essential character to this particular set is that of the Smartphone. It is the dominant apparatus contained within the set by value and use. It is clearly the reason why one would purchase the set.

Section XVI Note 3 provides ‘Unless the context otherwise requires, composite machines consisting of two or more machines fitted together to form a whole and other machines designed for the purpose of performing two or more complementary or alternative functions are to be classified as if consisting only of that component or as being that machine which performs the principal function.

It is the opinion of this office that the principal function of the Smartphone is that of its radiotelephony capability. The Smartphone is marketed and sold as a cellular telephone and it is the dominant feature of the device. All other functions can only be operated once the radiotelephony capability is activated.

Chapter 85, Legal Note 6, HTSUS, provides that, “records, tapes and other media of heading 8523 or 8524 remain classified in those headings when entered with the apparatus for which they are intended.” However, the note “does not apply to such media when they are entered with articles other than the apparatus for which they are intended.” The two CD-ROM installation software programs are used on an ADP machine, not in the Smartphone. However they are part of this Smartphone set. General EN (B)(1) to Chapter 85, HTSUS, directs that if recorded media presented with apparatus for which it is not intended is part of a set for retail sale, it is classified pursuant to GRI 3(b). Therefore, the instant CD-ROMs need not be classified separately; they are subsumed in the set.

The applicable subheading for the Smartphone set will be 8525.20.9070, Harmonized Tariff Schedule of the United States (HTS), which provides for Transmission apparatus for radiotelephony, radiotelegraphy, radiobroadcasting or television, whether or not incorporating reception apparatus or sound recording or reproducing apparatus; television cameras; still image video cameras and other video camera recorders; digital cameras: Other Other radio telephones designed for the Public Cellular Radiocommunication Service: Other. The rate of duty will be free.

This ruling is being issued under the provisions of Part 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Michael Contino at 646-733-3014.

Sincerely,

Robert B. Swierupski
Director,

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